More On Sotomayor

My good (albeit, liberal) friend Paula Rubin chastised me for my remarks on Judge Sotomayor made in the post below. She suggested that I took the Judge's statement about the difference between a white male judge and a Latina judge, out of context. Here's a little context:

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

The portion in italics was what I initially quoted. Judge Sotomayor made that statement in a 2001 speech that was published in the Berkeley La Raza Journal.

Now, I want to be clear. I think that elections have consequences and one of those consequences is that the President nominates Federal judges. We elected a liberal Democrat President. He is not going to nominate Robert Bork. It has always been my view that unless a nominee is clearly unqualified, the President should get his choice.

Since the time of the Bork nomination, the Democrats have not concurred with that theory. It has been deemed perfectly reasonable to vote against a nominee because he was "too conservative". That was the basis on which the majority of Democratic Senators voted against the Alito and Roberts nominations. Republicans have generally adhered to the former theory, as evidenced by their support of the Breyer and Ginsburg nominations during the Clinton Administration.

I think it is fair to question a nominee to our highest Court about her judicial philosophy. It is quite clear that if a white, male judicial nominee expressed the view that his experiences as a white male better suited him to be a judge than those of a Latina, he would be pilloried. Thus, it seems that Judge Sotomayor ought to be asked to elaborate on those remarks.

Some questions in this regard come to mind. Did the fact that she is a Latina influence her thinking in reaching her decision in Ricci v. DeStefano? Does she think a white male judge would have reached a different decision? This was an affirmative action case that is now before the Supreme Court.

While I expect Judge Sotomayor to be confirmed, no conservative should be happy about it. Souter was a reliable liberal vote but Judge Sotomayor is likely to be a more vociferous advocate of left-wing causes. And, at age 55, she will likely be there for a long time.